Rethinking the Privilege Against Self-Incrimination

While recognized in a large number of jurisdictions, the privilegeagainst self-incrimination proves hard to justify. This articleattempts to develop a rationale for the privilege which avoidsthe usual pitfalls. It argues that the most compelling rationalefor the privilege is that it serves as a distancing mechanism,allowing defendants to disassociate themselves from prosecutions.The resulting account has implications for the scope of theprivilege. First, it suggests that no distinction should bedrawn between requirements to speak and requirements to providethe authorities with documents, blood samples and the like.Second, it is argued that recognition of a privilege againstself-incrimination implies that we should recognize a privilegeagainst other incrimination which has similar force. Attentionis also paid to exceptions to the privilege.